Bad policing rewarded by unjust law

Attorney General Suzanne Anton says “every single British Columbian who is involved in a civil forfeiture claim has the opportunity to appear before a judge in the B.C. Supreme Court to tell their side.”

Photograph by: PNG
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The justice minister says that, “Now, more than ever, crime in B.C. does not pay,” but is that really what we’re seeing?

B.C. Supreme Court Justice Jacqueline Dorgan last July called the actions by director of the civil forfeiture office, Phil Tawtel, a former commercial crime investigator with the RCMP in Edmonton, “contrary to the interests of justice.”

Dorgan was critical of Tawtel’s failure to act on the file for more than a year, for relying on a Vancouver realtor’s opinion about a southeastern B.C. property he hadn’t seen, for not appearing at an earlier hearing and for seizing the bank notes in a pensioner’s numismatic collection.

Criminal charges in the case were tossed because the Mounties used a sketchy search warrant in the marijuana grow-operation investigation but the civil forfeiture office stepped in using civil proceedings.

B.C. is one of the most aggressive jurisdictions in Canada using these laws to harass citizens.

It’s all well and good for Anton to say: “Every single British Columbian who is involved in a civil forfeiture claim has the opportunity to appear before a judge in the B.C. Supreme Court to tell their side.”

She forgets to mention it will cost you $15,000 up front for a lawyer and perhaps $50,000 if there’s a trial.

The 72-year-old in the case before Dorgan was a tenant living in a cabin with no plumbing and minimal power; he wasn’t the owner of the grow-op found in an old outbuilding elsewhere on the acreage owned by his landlord.

The property owner testified police told him they didn’t care whether criminal charges were successful and to expect the director of civil forfeiture.

He did and, though the old man got his cash back, his former landlord is still fighting.

The case is not unique, which suggests the director’s office goes asset-grabbing regardless of conviction, circumstance or fairness.

There are hundreds of cases before the courts or being administratively handled — $41 million has been reaped since the process was established in 2006, $8.4 million last year.

But there are too many indications that this law’s application is capricious and lacks proportionality.

Most cannot afford to properly retain counsel to dispute the allegations or to raise Charter issues, especially given the risk that they could lose the asset and owe Victoria for court costs.

And how much chance does an ordinary citizen have against a seasoned litigator representing the director’s office, like Dirk Ryneveld, Q.C., the province’s former Police Complaints Commissioner.

It’s fine to say you can have your day in court but at those odds?

There is a huge imbalance between the resources of the director and the average litigant.

The forfeiture law was brought in to take the profit out of organized crime, and there is no question it is being used against groups such as the Hells Angels.

As a result, in October, the Angels hired respected, high-profile Vancouver lawyer Joe Arvay and launched a major challenge to the legislation.

Such laws, which now exist in seven provinces, were imported to Canada from the U.S. They represent a blurring of federal and provincial jurisdiction that under the constitution should be separate — the criminal law is Ottawa’s bailiwick, and although these are provincial civil laws, they speak to federal criminal concerns.

Perhaps more importantly, the forfeiture law turns out not to have emboldened the authorities to take on Mr. Big, but rather it has encouraged them to harvest the low-hanging fruit.

People like the Vancouver Island fire captain who lost his job and was sentenced to 100 hours of community work for what the judge said was a minor first offence by an otherwise law-abiding 51-year-old — he was caught speeding with a four-pound stash of pot in his truck.

Then the government seized his $52,000 Dodge Ram and it took him seven years to get it back.

His was the first civil forfeiture case to be heard by the B.C. Court of Appeal and three justices in Nov. 2012, I think, unanimously raised a warning flag.

The act aimed at taking the profit out of “unlawful activity” was “wide in scope and firm in its application,” Justice Mary Newbury said writing for the panel.

She noted the law does not even require the province to persuade a judge that forfeiture will serve all or even some of its statutory objectives — only that the property is tainted by “unlawful activity.”

The “unlawful activity” may be found to have occurred even if no one was charged with a crime, or even if a person was acquitted, and the activity may have occurred before or after the act came into force.

“In all the circumstances,” she said, “I cannot say the court below was wrong in concluding that it would be manifestly contrary to the interests of justice to order the forfeiture of all or part of the value of the truck.”

But Newbury said, on the point of law under appeal, the legislation certainly allowed the seizure of the truck even though it had been used for primarily lawful purposes.

She ordered the truck returned because ordering a new trial after seven years seemed contrary to justice and left questions about the law’s constitutionality for another day.

This legislation, however, has created a situation in which bad policing can be rewarded and the cost of litigation has exacerbated that injustice by limiting broader judicial review.

No matter how much she likes the sound of the rationale behind civil forfeiture, Anton should recognize government has a duty of fairness not to use the immense resources of the state to bludgeon innocent people — especially when the criminal code has more than adequate provisions to seize the tainted assets of the guilty.

Attorney General Suzanne Anton says “every single British Columbian who is involved in a civil forfeiture claim has the opportunity to appear before a judge in the B.C. Supreme Court to tell their side.”

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